University of Illinois Law Review
Much attention has been paid of late to unauthorized disseminations of classified information. A grand jury proceeding has been initiated to investigate the leak and publication of information about the National Security Agency's warrantless electronic surveillance program. And in a case currently pending in the Eastern District of Virginia, the U.S. government for the first time is prosecuting private citizens for exchanging classified information in the course of concededly non-espionage activities - specifically, political lobbying. These events illuminate the underdeveloped and deeply under-theorized state of the law on classified information leaks and publications. The central chasm in existing theory and doctrine on the topic - apart from how little of it exists - is that it fails adequately to integrate the separation of powers and free speech issues that the topic raises. This Article integrates these two sets of issues, considering both the free speech values at stake and the discretion and capacity constitutionally accorded the political branches to protect national security information. This Article concludes that the national security related powers of the political branches - particularly the executive branch's vast secret-keeping capacity - do not diminish the free speech protections that should apply in the realm of classified information. To the contrary, these powers make speech and transparency related checks particularly crucial in this realm. Significant first amendment protection for classified information leaks and publications, in short, is warranted. The President's Article II capacities enable him to oversee a vast classification system. This can be inferred from constitutional structure and history, and also has been borne out over time as the classification system and the administrative infrastructure to implement it have grown dramatically. But with such capacity for, and realization of, a secrecy system, come substantial implications for an informed populace and hence for the First Amendment and the very structure of self-government. And the particular form of Presidential secrecy that is classification is so broad and so scattered in its manifestations that it cannot effectively be matched through discrete information requests from Congress or other government players. Instead, the First Amendment demands some breathing room for disclosure by those within the vast secret-keeping infrastructure as well as by the press and the public to whom information might be leaked. This analysis explains the intuition that the press and the public should be highly protected from prosecution for classified information publication. This intuition is largely correct, although it does not preclude punishment that would meet stringent First Amendment standards. This Article's analysis also sheds light on the constitutional balance that must be struck in prosecuting government employees for information leaks. On the one hand, government employees serve as functionaries of Article II, subject to Presidential judgments with respect to national security secrets. In this sense, they bear an Article II responsibility that the press and the general public lack. On the other hand, they have special First Amendment value given their access to information within a vast and powerful secret-keeping system. Government employees thus merit a more moderate level of protection than do the press and the public, but a level substantially greater than that reflected by the automatic or presumptive criminalization of classified information leaks.
Heidi Kitrosser, Classified Information Leaks and Free Speech, 2008 U. Ill. L. Rev. 881 (2008), available at https://scholarship.law.umn.edu/faculty_articles/176.